OFFICE OF SENATOR, AND ITS INCOMPATIBILITY WITH OTHER OFFICE.

MR. PRESIDENT,—The Senator from Connecticut [Mr. Foster] has presented the objections to the seat of General Lane ingeniously and ably; but I must frankly confess that he fails to satisfy me. I could not resist the brief, but decisive, statement of the Senator from New York [Mr. Harris], to which we listened the other day; and the ampler argument of the Senator from New Hampshire [Mr. Clark], to which we have listened to-day, seems to leave little more to be said. I shall follow the latter without adding to the argument.

The language of the Constitution applicable to the case is explicit: “No person holding any office under the United States shall be a member of either House of Congress during his continuance in office.” But the question arises, Did General Lane hold any such office after he became Senator?

Not considering the case minutely, I content myself with briefly touching two points, either of which will be sufficient to secure his seat to General Lane.

1. At the time when the military appointment was received from the President, General Lane was simply Senator elect from Kansas, and not actually Senator. This cannot be questioned. Until he took the oath at your chair, Sir, he was Senator in title only, not in function. It is true, he already exercised the franking privilege; but this he will also exercise months after his term expires. The franking privilege was all that he possessed of Senatorial functions. On this point I read what is said by Mr. Cushing, in his elaborate work on the Law and Practice of Legislative Assemblies.

It is clear that the member elect is not invested with the office until qualified by taking the oath. If illustration of this rule be needed, it will be found in the Parliamentary History of Great Britain. Soon after the Revolution of 1688, two persons returned as members refused to take the oaths and were discharged. But there is an historic precedent almost of our own day. As the long contest for Catholic Emancipation in Great Britain was drawing to a close, Mr. O’Connell was elected by the County of Clare to a seat in Parliament. Presenting himself at the bar of the House of Commons, he refused to take the Oath of Supremacy, then required of all members, and was heard at the bar in support of his claim; but the House resolved that he was not entitled to sit or vote, unless he took this oath; and as he persisted in refusal, a writ was issued for a new election. Still later, the same question arose in the case of Baron Rothschild, the eminent banker of the Jewish persuasion, who, when elected as representative for the city of London, refused to take the oaths required, and on this account was kept out of his seat, until what is known as the Jews’ Relief Bill became a law. The conclusion is irresistible, that, until the oath was taken, General Lane had not entered upon his functions as Senator; and here the argument of the Senator from Connecticut, with regard to the effect of the oath, is strictly applicable. An oath in public, at your chair, Sir, being at once of record and sealing the acceptance of an office, is very different from the informal oath taken in private, at a distance, before a local magistrate, which is in the nature of an escrow, until recorded in the proper department.

2. Even if General Lane had been Senator, invested with the functions of the office, and completely qualified by taking the necessary oath, it is still clear that the military duties he had undertaken did not operate as a resignation. And here I remark, that, when it is proposed to unseat a Senator, to deprive him of a place in this body,—I might almost say to deprive him of his rank,—the evidence must be complete. It must be, according to that old phrase of the Common Law, “certainty to a certain intent in every particular.” If there be doubt, either in law or fact, the interpretation should be in his favor. But this case requires no such interpretation. It is true that General Lane had entered upon certain military duties, but he had assumed no military office under the Constitution of the United States. Colonel Baker, a late lamented member of this body, had assumed military duties also. Like General Lane, he, too, had come forward at the summons of the President. It is true that Colonel Baker acted professedly under a commission from a State. General Lane has latterly acted under a similar commission; but at the moment in question he was acting under certain informal and extra-constitutional proceedings of the President, rendered necessary by the exigencies of the hour. The President, by proclamation, undertook to organize an army. He called for volunteers, and also for additions to the regular army. All approved the patriotic act. But I am at a loss to understand how it is supposed that this proceeding can be made effective to oust a Senator of his seat. The act of the President was proper, just, and patriotic; but clearly, and beyond all question, it needed the sanction of Congress to be completely legal. Without such sanction, the army must have drawn its breath from the proclamation alone, and every commission would have been merely a token of Presidential confidence, liable to be defeated, first, by the failure of Congress to sanction the proclamation, and, secondly, by refusal of the Senate to advise and consent to the nomination. It was only when the Act of July 22d was passed, that the President was authorized to appoint new Brigadier-Generals. Then it was, for the first time, that a legal addition was made to the national army, and that this very office was legally created which General Lane was charged with accepting some time in June.

I do not forget the retroactive statute passed on the last day of the session, declaring that all the acts, proclamations, and orders of the President respecting the army and navy, and calling out or relating to the militia or volunteers, are approved, and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of Congress. The clause in the Constitution against ex post facto laws has been restricted by judicial interpretation to criminal matters; but I doubt if even this much questioned interpretation would sanction such a retroactive effect as is now proposed. So much, at least, I do know: the Senate is judge, without appeal, with regard to the seats of its members; and I am sure it will not unseat a Senator by a strained application of an ex post facto statute.

The conclusion is twofold: first, that at the time in question General Lane was not a Senator; and, secondly, that at the time in question he was not a Brigadier. The whole case is unreal. It is a question between an imaginary Senator and an impossible Brigadier; or rather, it is a question whether an imagined seat in this body was lost by alleged acts under an impossible military commission. The seat of the Senator did not become a reality until some days after General Lane is supposed to have vacated it; and the military commission did not become a possibility until several weeks after General Lane had abandoned it.

Of course, with this view of the law on these two decisive points, it becomes entirely unnecessary to consider the multifarious and indefinite evidence with regard to what General Lane did in the way of accepting his military commission; because nothing that he did, and nothing that he could do, under that impossible commission, would operate legally in the present case.

I have no desire to follow at length the Senator from Kentucky, but I venture to ask the attention of the Senate simply to one of the points he has presented. According to him, General Lane, when elected as Senator, by the mere fact of his election became Senator, so that the Constitution operated to create an incompatibility between the function of Senator and the new office which it is said he accepted. The Senator from Kentucky, as I understood, argued that the function of the Senator, at least for the purpose of this case, commences with his election.

Mr. Sumner. Certainly, if the Senator will allow me just to make my statement. The Senator, I say, assumes that the function of the Senator, at least for the purposes of this case, commences with his election; and in support of that assumption he quotes the Constitution of the United States, as follows:—

Now, Mr. President, I most humbly submit that the clause of the Constitution just quoted is entirely inapplicable. It has nothing to do with the question. I say, with all respect to the Senator, he might as well have quoted anything else in the Constitution. It does not bear on the case. It relates to an entirely different matter. There is another associate clause which does directly bear on this question. It is as follows:—

Those are the words, Sir, governing this case, and they conduct us directly to the question, when and at what time a person becomes a member of either House. That is the simple question.

Mr. Sumner. I will finish in one moment. Clearly he becomes a member of this body, so as to discharge his duties as Senator, and to be affected with the responsibilities of Senator, only when he has taken his oath at your desk, Sir,—not one minute before. There is nothing in the Constitution, there is nothing in the practice of any parliamentary body in this country, or in any other country, I think, pointing to any different conclusion. Here I cannot err. The language of the Constitution is sufficiently precise, and I feel confident that the practice of Congress and of other parliamentary bodies is sufficiently authoritative. Therefore the conclusion is inevitable, that, until the 4th of July, last summer, General Lane, chosen Senator by the people of Kansas, was simply Senator elect, possessed through courtesy of the franking privilege, but enjoying no other Senatorial function.

Now I am ready to answer any question of the Senator.

Mr. Sumner. In a certain sense I should say it was.

Mr. Sumner. I should say in a certain sense it did. I have already said that he had the franking privilege, and I presume he was entitled to the emoluments of the place, such as they are; but had he not been qualified, he could not have drawn pay. It was only by taking the oath that he was entitled to pay from the Secretary of the Senate.

Mr. Sumner. The Senator must pardon me, if I cannot assent to his conclusion. He may have been a Senator to a certain extent, but not so as to create incompatibility with another office under the Constitution.

EXPULSION OF JESSE D. BRIGHT, OF INDIANA.

In other similar cases, arising out of recent events, where the Senate has already acted, the persons in question were absent, openly engaged in rebellion. There was no occasion for argument or discussion. Their guilt was conspicuous, like the rebellion itself. In the present case, the person is not absent, openly engaged in rebellion. He still sits among us, taking part in the public business, voting and answering to his name, when called in the roll of the Senate. His continued presence may be interpreted in opposite ways, according to the feelings of those who sit in judgment. It may be referred to conscious innocence, or it may be referred to audacious guilt.

That he takes his place in the Senate is not, therefore, necessarily in his favor. Catiline, after plotting the destruction of Rome, took his place in the Senate, and listened to the orator who denounced the treason; nor did the Roman patriot hesitate to point his eloquence by the exclamation that the traitor even came into the Senate,—“etiam in Senatum venit.” In the history of our country there is a well-known instance of kindred audacity. Benedict Arnold, after commencing correspondence with the enemy, and before detection, appeared at the bar of a court-martial in Philadelphia, and yet, with treason not only in his heart, but already in his acts, thus spoke, without a blush: “Conscious of my own innocence and the unworthy methods taken to injure me, I can with boldness say to my persecutors in general, and to the chief of them in particular,”—and, with this introduction, he alleged patriotic service.[125] You know well the result. The traitor thus appearing and speaking in open court continued his treason. The faithful historian does not hesitate to say that “at the moment these declarations were uttered he had been eight months in secret correspondence with the enemy, and was prepared, if not resolved, when the first opportunity should offer, to desert and betray his country.”[126] History teaches by example; and the instances that I adduce admonish us not to be governed merely by appearances, but to look at things as they are, and to judge according to facts, against which all present professions are of little worth.

I put aside, therefore, the argument founded on the presence of the person in question. That he still continues in the Senate, and even challenges this inquiry, does not prove his innocence any more than it proves his guilt. The question is still open, to be considered carefully, gravely, austerely, if you will, but absolutely without passion or prejudice,—anxious only that justice should prevail. Your decision will constitute a precedent, important in the history of the Senate, either as warning or encouragement to disloyalty. And since our votes are to be recorded, I am anxious that the reasons for mine should be known.

The question may be properly asked, if this inquiry is to be conducted as in a court of justice, under all the restrictions and technical rules of judicial proceedings. Clearly not. Under the Constitution, the Senate, in a case like the present, is absolute judge, free to exercise its power according to its own enlightened discretion. It may justly declare a Senator unworthy of a seat in this body on evidence defective in form, or on evidence even which does not constitute positive crime. A Senator may deserve expulsion without deserving death; for in the one case the proceeding is to purge the Senate, while in the other it is punishment of crime. The motives in the two cases are widely different. This identical discretion has been already exercised at this very session, as well as the last, in the expulsion of several Senators. And the two early precedents—the first of William Blount, in 1797, and the second of John Smith, in 1807—both proceeded on the assumption that the Senate was at liberty to exercise a discretion unknown to a judicial tribunal. In the well-considered report of the Committee in the latter case, prepared by John Quincy Adams, at that time Senator, we find the following statement.

I do not stop to consider and illustrate a conclusion thus sustained by precedent as well as reason. It is obvious that the Senate may act on any evidence satisfactory to show that one of its members is unworthy of his seat, without bringing it to the test of any rule of law. It is true that the good name of the individual is in question; but so also is the good name of the Senate, not forgetting also the welfare of the country; and if there are generous presumptions of personal innocence, so also are there irresistible instincts of self-defence, compelling us to act vigorously, not only to preserve the good name of the Senate, but also to save the country menaced by traitors.

Consider, too, the position of a Senator. Elected by the Legislature of his State, he sits for six years in this body, sharing its labors, its duties, its trusts. His official term is the longest known to the Constitution. The Representative, and the President himself, pass away; but the Senator continues. In ordinary times his responsibilities are large; but now they are larger still. On every question of legislation, touching our multitudinous relations, touching our finances, our army, our navy, touching, indeed, all the issues of peace and war,—also on every question of foreign policy, whether in treaties or in propositions disclosed in executive session,—and again, on all nominations by the President, judicial, executive, military, and naval,—the Senator is called to vote; and he is free to join in debate, and to influence the votes of others. With these great responsibilities are corresponding opportunities of knowledge with regard to the counsels of the Government. These doors are often closed against the public, but they are never closed against him. This position of the Senator gives to the question of his loyalty an absorbing interest. Surely it is of no small moment to know if there be among us any person unworthy of all this confidence.

The facts in the present case are few, and may be easily stated; for, beyond certain presumptions, they are of public notoriety, and above all doubt. Indeed, the whole case can be presented as plainly and as unanswerably as a mathematical proposition or a diagram in geometry.

On the 6th of November of the last year, Abraham Lincoln of Illinois was elected President by the popular vote. The election was in every respect constitutional; and yet, in violation of all the obligations of the Constitution, and all the duties of patriotism, a movement was instantly organized in the Slave States to set aside this election, by acts of conventions, if possible, but by violence, if necessary. The movement began in South Carolina, a State always mad with treason; and before the 1st of January then next succeeding, this State formally separated from the Union, renounced the National Government, and ranged in open rebellion. Georgia, Alabama, Mississippi, and Louisiana followed; and the precise object of this rebellion was to form a new government, with Slavery as its corner-stone. The Senators of these States, one after another, abandoned their seats in this Chamber, announcing a determination to seek their respective homes, and leaving behind menaces of war, should any attempt be made to arrest their wicked purposes.

Meanwhile military preparations were commenced by the Rebel States, who made haste to take military possession of forts and other property belonging to the National Government within their borders. Already, before the 1st of January, the Palmetto flag was raised over the custom-house and post-office at Charleston; it was also raised over Castle Pinckney and Fort Moultrie, in the harbor of Charleston, which, together with the national armory, then containing many thousand stands of arms and military stores, were occupied by Rebel troops in the name of South Carolina. At Charleston everything assumed the front of war. The city was converted into a camp. The small garrison under Major Anderson, after retreating from Fort Moultrie to Fort Sumter, was besieged in the latter fortress. Powerful batteries were erected to sustain the siege. From one of these batteries, on the 9th of January, a shot was fired at the United States steamship Star of the West, with the national flag at her mast-head, bearing reinforcements for the garrison, and the discomfited steamship put back to New York. The darling desire was to capture Fort Sumter, and various plans were devised for this purpose. One Rebel proposed to take the fort by floating to it rafts piled with burning tar-barrels, thus, as was said, “attempting to smoke the American troops out, as you would smoke a rabbit out of a hollow.” Another was for filling bombs with prussic acid, and sending them among the national troops. Another thought that it might be taken without bloodshed,—through silver, rather than shell,—simply by offering each soldier ten dollars of Rebel money. Another proposed a floating battery, through which, under cover of the stationary batteries, and with the assistance of an armed fleet, an attack might be made, while from some convenient point a party of sharpshooters would pick off the garrison, man by man, and thus give opportunity to scale the walls. But such a storming, it was admitted, could be accomplished only at a fatal sacrifice of life, and it was finally determined that the better way was by protracted siege and starvation. Such, at this early day, were the propositions discussed in Charleston, and through the journals there advertised to the country.

The same spirit of rebellion, animating similar acts, appeared in the other Rebel States. On the 3d of January, Fort Pulaski, a fortress of considerable strength near Savannah, was occupied by Rebel troops of Georgia, acting under orders from the Rebel Governor. On the 4th of January, the national arsenal at Mobile, with arms, barrels of powder, and other munitions of war, was seized by Rebel troops of Alabama, as was also Fort Morgan on the same day. On the 11th of January, the marine hospital, two miles below New Orleans, was seized by Rebel troops of Louisiana, and the patients of the hospital, numbering two hundred and sixteen, were ordered away to make quarters for the Rebels,—thus repeating the indefensible atrocity of Napoleon, when, near Dresden, he seized an insane asylum for his troops, and set its inmates loose, saying, “Turn out the mad.”[128] On the 12th of January, Fort Barrancas and the navy-yard at Pensacola, with all their ordnance stores, were obliged to surrender to armed Rebels of Florida and Alabama, the commandant reporting to the National Government, “Having no means of resistance, I surrendered, and hauled down my flag.” On the 24th of January, the national arsenal at Augusta, in Georgia, also surrendered, upon demand of the Rebel Governor. On the 31st of January, the national branch mint, containing $389,000, and the national sub-treasury, containing $122,000, were seized at New Orleans by the Rebel authorities. Such, most briefly told, are some of the positive incidents of actual war through which the Rebellion became manifest. And you also know, that, throughout the anxious period, when these things were occurring, the National Capital was menaced by the Rebels, proposing especially to disperse Congress, to drive away the National Government, and to seize the National Archives. Nor can you forget that Lieutenant-General Scott, then at the head of our army, under the exigencies of the time, changed his head-quarters from New York to Washington, where he gave his best powers to the national defence,—organizing the local militia, summoning the national troops, planting cannon, and in every way preparing to meet the threatened danger.

Meanwhile these Rebel States, having declared their separation from the National Government and forcibly seized its strongholds and other property within their borders, proceeded to constitute themselves into a political conglomerate, under the title of Confederate States. Their Constitution was adopted on the 8th of February, and the same day Jefferson Davis, of Mississippi, was elected President and commander-in-chief of the armies, and Alexander H. Stephens, of Georgia, Vice-President. Shortly afterwards, on the 21st of February, the President of the Rebellion nominated a Cabinet, in which Toombs, of Georgia, was Secretary of State, Memminger, of South Carolina, Secretary of the Treasury, and Walker, of Alabama, Secretary of War. To this extent had the Rebellion gone. No longer a mere conspiracy, no longer a simple purpose, no longer a mere outbreak, it was an organized body, or rather several organized bodies massed into one, and affecting the character and substance of government. Remember, too, that in all its doings and pretensions it was a Rebel government, set in motion by conspiracy and sustained by declared Rebellion, which openly disowned the National Government, openly seized the national forts, and openly dishonored the national flag. Of this flagrant Rebellion Jefferson Davis became the chosen chief, as he had already been for a long time the animating spirit. In him the Rebellion was incarnate. He was not merely its civil head, but its military head also. It was he who made cabinets, commanded armies, and gathered munitions of war. His voice and his hand were voice and hand of the Rebellion itself. By his own eminent participation, and the superadded choice of the Rebels, he had become its chief, as much as the old Pretender was chief of the disastrous Rebellion in Great Britain, crushed on the field of Culloden,—as much as Satan himself, when seated on his throne and rallying his peers of state, was chief of an earlier rebellion.

That transcendent outrage, in itself the culmination of the Rebellion, destined to arouse at last a forbearing people, had not yet occurred; but it was at hand. Fort Sumter had not been openly assailed; but the hostile batteries were ready, and the hostile guns were pointed, simply waiting the word of Rebel command, not yet given.

Precisely at this moment, on the 1st of March, 1861, Jesse D. Bright, at the time a Senator of the United States, addressed the following letter to the chief of the Rebellion.

And now, before considering the letter, look well at the parties and their respective positions. It is written by a person at the time Senator, and addressed to a person at the time chief of the Rebellion, in behalf of an unknown citizen, owner of a great improvement in fire-arms. It is proper to mention, as additional facts which will not be questioned, that the author had been for a long time in notorious personal relations with the conspicuous authors of the Rebellion, especially with Jefferson Davis and John Slidell,—that he had notoriously sympathized with them in those barbarous pretensions for Slavery which constitute the Origin and Mainspring of the Rebellion,—and that he had always voted with them in the Senate. All this is notorious; and if the old maxim, Noscitur a sociis, or, according to our familiar English, “A man is known by the company he keeps,” be not entirely obsolete, then this inquiry must commence with a presumption against such an intimate associate of the Rebels. But, while looking at the author, we must not forget the humble citizen intrusted with the letter. It is a fact, as I understand, that he has been since arrested for treason, and is now in the hands of the law, charged with the highest crime known to justice, while the author still occupies a seat in the Senate. Perhaps this is only another illustration of the saying of Antiquity, that the law is a cobweb, holding the weak, but which the powerful break through with impunity. The agent is now in custody; the principal is yet in the Senate. So much at present with regard to the parties.

Next comes the letter itself. And here mark, if you please, first, the date, which is the 1st of March. This was at the very moment when the Rebellion was completely organized, and had assumed at all points the undisguised front of war. By various acts of violence it had forcibly dispossessed the National Government of all its military posts in the whole extensive region, except Fort Sumter and Fort Pickens, which it held in siege,—while, by other formal acts, it had assumed to dispossess the National Government of all jurisdiction, civil or military, throughout this region. That such acts constituted “levying of war,” within the meaning of the Constitution, is too plain for argument. This phrase, borrowed from the early statute of Edward the Third, has received positive interpretation in the country of its origin, according to which its meaning is clear. There is no better authority than Sir William Blackstone, who, when considering what is “levying of war,” says: “This may be done by taking arms, not only to dethrone the king, but under pretence to reform religion or the laws, or to remove evil counsellors, or other grievances, whether real or pretended: for the law does not, neither can it, permit any private man or set of men to interfere forcibly in matters of such high importance.”[129] And Lord Mansfield, Chief-Justice of England, on the trial of Lord George Gordon, declared it to be “the unanimous opinion of the Court, that an attempt, by intimidation and violence, to force the repeal of a law, was a levying war against the king, and high treason.”[130] I quote these authorities simply that this statement may not rest at any point on my assertion. At the date of this letter, then, there was actual levying of war by Jefferson Davis and his associates against the Government of the United States. And let me add, that this levying of war was not merely that moderate constructive levying of war described by Blackstone, but open, earnest, positive war, backed by armies and by batteries.

You will next observe the address of this letter. It is “To His Excellency, Jefferson Davis, President of the Confederation of States.” Bestowing upon this Pretender the title of “His Excellency,” the author certainly exhibits a courtesy—at least in form—which usage does not allow the President of the United States. It is well known, that, at the organization of the Government, the title of “Excellency,” together with all other titles, was, after debate, carefully rejected for our Chief Magistrate; but the author of this treasonable letter will not deny anything to the Chief of the Rebellion. His profusion appears at once, and his first words become a confession. Not by titles of courtesy do loyal Senators address a traitor. There has been a King of England who on one occasion was called only Charles Stuart, and there has been a King of France who on one occasion was called only Louis Capet; and these great instances show how even the loftiest and most established titles are refused, where treason is in question. Titles are sometimes insincere; but a title voluntarily bestowed testifies at least to the professions of him who bestows it. It is a token of respect, and an invitation to good-will, proceeding directly from the author. And in this spirit was this letter begun.

Not content with bestowing upon this Pretender a title of courtesy denied to our own President, the author proceeds to bestow upon him a further title of office and of power. He addresses him as “President of the Confederation of States,”—meaning the very States then engaged in levying war upon the National Government. So far as this author can go, just to the extent of his authority, the Pretender is recognized as President, and the Rebel States are described by the very title which, in defiance of the National Government, they assume. Our own Government steadfastly refuses this recognition. Foreign nations thus far follow substantially the policy of our own Government; but the author of this letter, at the time Senator, makes haste to offer recognition.

Perhaps this double criticism on the address of the letter may seem unimportant. It might be so, if the address had been used in conversation or debate, although then it would be tolerable only if used in derision. But it becomes important, when used directly to the Pretender himself; for then it signifies respect and recognition, while it discloses the mood of the author.

Look next at the contents, or the letter itself, and all that is implied in the address you will find painfully verified. The disloyalty which crops out in titles of courtesy and recognition becomes full-blown in the letter itself, whether we regard its general character or its special import; and I shall now consider these in their order.

In general character the letter is correspondence with a public enemy, in open war with our own country; or rather let me say it is correspondence with a public rebel. It is obvious that all correspondence of such a character, even without considering its special import, is open to suspicion. Throughout history it has been watched with jealous judgment, as in the cases of Bolingbroke and Atterbury in England, of Pichegru and Fouché in France. Tried even by those technical rules which in the present inquiry we reject, it may help to complete the evidence of treason itself. The well-chosen language of the Constitution, borrowed from an early resolution of the Continental Congress, by whom it was borrowed from the early English statute, authorizes this conclusion. According to the Constitution, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Here are two classes of cases: the first is levying war, which Jefferson Davis, as we have already seen, was notoriously doing at the date of this letter; and the second is adhering to enemies, giving them aid and comfort. Even if mere correspondence with an enemy would not bring the author within the scope of these words, clearly and beyond all question such correspondence is calculated to give at least moral aid and comfort to the enemy. Nor is it to be disregarded on this occasion, even if it does not reach the technical requirement of treason. If we listen to the Supreme Court of the United States in the case of Bollman, we find this tribunal declaring, that, “if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”[131] Assuming the previous league, it cannot be doubted that an act of sympathy and friendship, though minute or remote, extended to persons in rebellion, would be evidence to bring the offender within the cautious grasp of the Constitution, even on technical grounds. If in the present case there was no previous league, there was at least a previous and most notorious fellowship, kindred to a league, by which the author was morally linked to the conspirators.

But the letter in question is a letter of sympathy and friendship, from beginning to end,—such a letter as only one friend could write to another friend. Dated at Washington on the 1st of March, it was calculated, if received by the Pretender, to give him hope and confidence, by inspiring the idea that here in the Senate Chamber there was at least one person still wearing this high trust, who, forgetting all that was due to his country, and forgetting all that was due to the Rebellion, reached forth his hand in friendly salutation. Dated at Washington on the 1st of March, it was calculated, if received, to awaken doubt of the loyalty of the Senate itself, and to encourage belief that here, in this sanctuary of the Constitution, treason might hatch undisturbed. So are we all knit together, that we are strengthened by human sympathy; and the Pretender would have felt new vigor, as the strength of the American Senate was transfused through the declared sympathies of an acknowledged member. The patriot soul recoils from the ancient traitor who flashed a signal torch from a beleaguered citadel; but one of our own number, who yet sits among us, has done this very thing.

Such is the necessary conclusion with regard to this letter, if we look at its general character. But when we consider its special import, the conclusion is still more irresistible. The letter clearly comes within the precise text of the Constitution. It is flat treason. I use no soft words, for the occasion does not allow it. Adhering to the enemy, giving them aid and comfort, must be proved by some overt act, of which Blackstone states the following instances: “As by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like.”[132] Such are precise words of this authority, and I do not stop to enforce them. But this letter is an overt act of adherence, giving aid and comfort, identical with the instances mentioned by Blackstone. Read it. “Allow me to introduce to your acquaintance,” so says the letter, “my friend Thomas B. Lincoln, of Texas.” The bearer of the letter is commended as a friend of the writer: but a friend is something more than associate or confederate; he is almost part of one’s self. Thus accredited, his errand is next announced: “He visits your capital mainly to dispose of what he regards a great improvement in fire-arms.” Mark the words “your capital.” Such is the language of an American Senator, writing to the Pretender, whose standard of Rebellion was then flying at Montgomery, in Alabama, which is thus deferentially designated as his capital. Observe next the declared object of the visit. It is “to dispose of what he regards a great improvement in fire-arms.” Thus does an American Senator send actual, open, unequivocal aid to the Chief of the Rebellion. It is true, he does not send him rifles or cannon; but he sends him “a great improvement in fire-arms,” through which rifles and cannon and other instruments of death, then preparing to be employed by Rebel hands against the patriot armies of the Republic, might be made more deadly. What are a few rifles, or a few cannon, by the side of such a comprehensive gift? When France, through the disguised agency of a successful dramatist,[133] sent ordnance and muskets to our Revolutionary fathers, she mixed herself positively in the contest, and, under the Law of Nations, Great Britain was justified in regarding her conduct as an act of war. And when an American Senator, without disguise, sends “a great improvement in fire-arms” to the Rebel chief, then engaged in levying war against his country, he mixes himself in the Rebellion, so that under Municipal Law he is a traitor. This conclusion is harsh, and I state it painfully; but it is according to the irresistible logic of the law and the facts.

But the letter contains other language to aggravate its guilt. Not content with sending the “great improvement in fire-arms,” the bearer is thus accredited to the Rebel chief: “I commend him to your favorable consideration, as a gentleman of the first respectability, and reliable in every respect.” An American citizen going forth on an errand of treason is thus exalted by an American Senator. The open traitor is announced as “a gentleman of the first respectability.” This is much to say of anybody; it is too much to say of an open traitor. But he is “reliable in every respect.” All language is to be construed with reference to the matter which it concerns. The bearer of this letter, going forth on an errand of treason, is “reliable in every respect”; and as the universal contains the special, he is reliable especially for the purposes of his treason: and this is the commendation which he bears to the Rebel chief from an American Senator.

Such a letter naturally begins, “My dear Sir,”—for the Chief of the Rebellion is evidently dear to the writer. That such a letter should be signed, “Very truly yours, Jesse D. Bright,” is natural also, and the words are not mere form. The author evidently, according to the contents of the letter,—as appears alike in its general character and its special import,—belongs to the Rebel chief, and is one of his “own.” In writing to the Rebel chief, he honestly begins, “My dear Sir,” and honestly closes, “Very truly yours”; but a person thus beginning and thus closing a letter of treason, volunteered to the declared enemy of his country, can hardly expect welcome to the confidential duties of this body.

Of course, in this inquiry, I assume the genuineness of the letter. If this letter were to be considered on technical grounds, the evidence would not be disdained even under the conservative words of our Constitution, according to which “no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” We have had the confession of the writer in open Senate, following similar confession in a supplementary letter, to which reference has been made in this debate. There can be no doubt on this point, and the writer must stand or fall by this letter, unless something has occurred since which can be accepted in extenuation of the unfortunate transaction.

It is true that the bearer of the letter was not able to present it. Before consummating his errand of treason, he was arrested by the watchful officers of the law, and, as we have already seen, is now in custody. The agent is in the hands of the law, while we debate on the seat of his principal. At the risk of introducing a superfluous topic, I cannot forbear adding that the crime of the principal was perfect when he wrote the letter and delivered it to his agent. It was expressly decided in England long ago, that a treasonable communication, “though intercepted, is an overt act of treason”; and this early principle was repeated by the Court of King’s Bench, speaking by the voice of Lord Mansfield, in the case of Dr. Hensey,[134] and again by the same court, under Lord Kenyon, in the case of William Stone.[135] It is completely applicable to the present case, even if our inquiry proceeded on technical grounds.

But the history of the transaction is not yet complete. Other incidents have occurred since, which are strangely offered in extenuation of the original crime. At the arrest of the agent, towards the close of last summer, the letter was found among his papers. Of course it excited much attention and some feeling. This was natural. At last the author, who still sits among us, addressed a second letter to his late colleague in this body [Mr. Fitch].